[2021] KEHC 4223 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 27 OF 2015

GODFREY KAMAU KIMANI...................................PLAINTIFF/RESPONDENT

VERSUS

1. RUTH WAMBURA

2. CHRISTINE WAMBURA

3. MONICA WAMBURA (sued in their capacityas the Administrator of the Estate

of the lateTHOMAS WAMBURA(Deceased)..........DEFENDANT/APPLICANTS

4. OKUYOSI E. TIMOTHY)

5. LAURENT PETER )..........................................DEFENDANT/RESPONDENTS

RULING

1. By way of Notice of Motion dated 11th December 2020, the 1st, 2nd and 3rd Defendants/Applicants have moved this court seeking the following orders: -

1. Spent;

2. THATthis Honourable Court be pleased to grant leave to the firm of M/S Kanyi J. and Company Advocates to come on record for the Applicants in the place of M/S Kiprop Cheruiyot & Co. Advocates;

3. THATthis Honourable Court be pleased to set aside and/or vary its orders on 22nd day of January, 2020, and set aside directions as to the delivery of the ruling on the Bill of Costs dated 27th May 2020 pending the hearing and determination of this Application;

4. THATthis Honourable Court be pleased to set aside and/or vary its order of 22nd day of January, 2020, and set aside directions as to the delivery of the ruling on the Bill of Costs dated 27th May 2020 pending the hearing and determination of this suit;

5. THATthis Honourable Court be pleased to reopen the Applicant’s case;

6. THAT the costs of this Application be provided for.

2. The Application is brought under Section 1A, 1B, 3Aand63(e) allof theCivil Procedure Act (Cap. 21), Order 9 Rules 9 & 10, Order 12 Rule 7, Order 24 Rule 4andOrder 51 Rule 1,all ofthe Civil Procedure Rules and all other enabling provisions of the law.

3. The grounds adduced in support of the application are that: -

a) The suit against the deceased abated on 27th March 2016 against the deceased.

b) The 2nd Applicant has never taken out letters of administration against the Estate of the deceased.

c) Judgment entered against the Applicants on 22nd January 2020 the foregoing illegalities notwithstanding.

d) The Plaintiff has since filed its party and party Bill of Costs dated the 27th day of May 2020 and the same is slated for ruling.

e) The Applicants defence on record, raising the serious legal issues was never ventilated upon at the instance of the Applicant’s erstwhile Advocates.

f) The mistake of the Applicant’s erstwhile Advocates should not be visited upon the Applicants.

g) That this Honourable Court has the opportunity to put right that which would otherwise be a clear injustice.

h) Equity does not suffer a wrong without a remedy.

i) This Honourable Court is vested with unlimited jurisdiction grant the orders sought “ex debito justiciae.”

j) Unless the Orders sought issue, the instant Application will be rendered nugatory, and the Applicant will suffer immense loss.

4. The application is further supported by the affidavit of Ruth Wambura, the 1st Defendant/Applicant herein, sworn on the 11th December 2020. In the said affidavit, the 1st Defendant/Applicant has deponed that the original suit was against the 1st -3rd Defendant/Applicant’s father, Thomas Wamburaas the 1st Defendant who died on 27th March 2015.

5. It is the 1st Defendant’s/Applicant’s averment that the 1st - 3rd Defendants/ Applicants were not aware of whether he had legal representation in the matter herein nor the matter before the Business Premises Rent Tribunal (BPRT).

6. The 1st Defendant/Applicant has stated that it was not until the of 3rd May, 2017, that letters of administration were issued for the estate of the late Thomas Wambura in her favour and that of the 3rd Defendant/ Applicant.

7. It has been deponed that the suit as against the 2nd Defendant/Applicant was a non-starter for want of letters of administration in her favor. It is further stated that the suit against the late Thomas Wambura abated on the 26th March, 2016 and that as at 30th November, 2018, when the 1st-3rd Defendant/Applicants were sued vide the Amended Plaint, there was no suit whose cause of action that survived after the demise of the said late Thomas Wambura.

8. The 1st Applicant has deponed that they were represented by the firm of M/S John Bwire & Co. Advocates who raised the issue on the abatement of the suit.

9. That further, the 1st - 3rd Defendants/Applicants changed advocates to M/S Kiprop Cheruiyot & Co. Advocates to act for them but the said Firm of Advocates never updated them on the progress of the matter. They were not aware that their case was closed on 16th October, 2019 without their instructions and yet they had a good defence with very high chances of success.

10. The 1st Applicant states that they learnt that Judgment had been delivered in the matter herein on the 4th December, 2020 after they made a curious visit to the their then advocates, M/S Kiprop Cheruiyot & Co. Advocates and learnt that the Plaintiff/Respondent has already filed and prosecuted a Party and Party Bill of Costs dated 27th May, 2020 which was slated for delivery of Ruling on the 9th December, 2020.

11. It has been deponed that the instant application could not be made on time due to the Covid-19 Pandemic, hence the 1st Applicant urges this court not to visit their erstwhile Advocates mistake on them.

12. The 1st Applicant has further deponed that the suit property was the only estate left by Thomas Wambura (deceased) and that the events of this matter have since exposed the 1st-3rd Defendant/Applicant to imminent danger of being disinherited unjustly.

13. In opposing the application, Mr. Godfrey Kamau Kimani, filed a Replying Affidavit on 22nd January, 2021 which was sworn on even date. He argues that the issue raised on the abatement of the suit was already addressed before Hon. Justice P.J. Otieno and thus it is res judicata.

14. He has deponed that the 1st - 3rd Defendants/Applicants have not challenged the Judgment as delivered on 22nd January, 2020 and thus they cannot challenge the taxation of the Party and Party Bill of Costs.

15. The Plaintiff/Respondent has stated that the 1st - 3rd Applicants filed an application dated 2nd May, 2019 seeking leave to file a Defence. The said leave was granted, however, the 1st - 3rd Applicants failed to file the said Defence. The 1st -3rd Applicants representative further told court that they would not be calling any witnesses and proceeded to file their closing submissions on the 10th December, 2019.

16. According the Plaintiff/Respondent, the 1st - 3rd Applicants having closed their case and filed submissions are estopped from raising issues which were raised and determined before the matter was heard and issues they ought to have raised before close of their case.

17. It is the Plaintiff’s/Respondent’s contention that the Applicants ought to have been vigilant enough to consult their former Advocates so they would have been informed that they were enjoined in the proceedings vide an order of court which was never challenged.

18. He argues that the application is an afterthought and an abuse of the court process as the Applicants have not given any reason for not attending court to defend the Bill of Costs dated 27th May, 2020 even after they had been notified of the same vide a notice dated 7th September, 2020.

19. The Plaintiff/Applicant has stated that the Applicants are only intent on delaying the execution process to deny him the fruits of his Judgment. He stated that he has been in court since 2012 seeking for justice and that the application should be dismissed.

20. The 1st Defendant/Applicant filed a Supplementary Affidavit with Leave of Court on the 5th February, 2021 and elucidated similar issues as raised in her Supporting Affidavit.

21. The court gave directions on 25th January, 2021 that the application be canvassed by way of written submissions. The 1st - 3rd Defendants/Applicants filed their submissions on 5th February, 2021. The Plaintiff/Respondent did not file any submissions despite being given time to do the same.

22. The 1st - 3rd Defendants/Applicants opted to rely on their written submissions.

ANALYSIS AND DETERMINATION

23. I have considered the Application filed herein, the grounds on its face together with the Affidavit filed in support thereof and Replying Affidavit thereto. I have also considered the written submissions by the 1st - 3rd Defendants/ Respondents, the statute and the case law cited. I find the issues that fall for determination being:-

i. Whether this court can grant leave for the firm of M/S Kanyi J. & Co. Advocates to come on record on behalf of the 1st - 3rd Defendants/Applicants in the place of M/S Kiprop Cheruiyot & Co. Advocates;

ii. Whether the suit herein abated as at the 26th March, 2016;

iii. Whether this court can set aside its orders issued on 22nd January, 2020 and be pleased to re-open the 1st - 3rd Defendants/ Applicants case

i. Whether this court can grant leave for the firm of M/S Kanyi J. & Co. Advocates to come on record on behalf of the 1st -3rd Defendants/Applicants in the place of M/S Kiprop Cheruiyot & Co. Advocates

24. The 1st -3rd Defendant/Applicants have stated that their relationship with the Firm of Advocates M/S Kiprop Cheruiyot & Co. Advocateshas irretrievably broken down that they are unable to communicate and are thus seeking leave that M/S Kanyi J. & Co. Advocatesdo come on record to protect their interests in the matter herein.

25. I wish to point out that the proper procedure for an advocate to come on record after Judgment has been entered as is the case herein, is provided for under Order 9 Rule 9of theCivil Procedure Rules, which states:-

“When there is a change of Advocate, or when a party decides to act in person having previously engaged an Advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the Court-

a) Upon an application with notice to all the parties; or

b)Upon a consent filed between the outgoing Advocate and the proposed incoming Advocate or party intending to act in person as the case may be.

26. In view of the provisions above, after Judgment has been passed, an advocate can only come on record upon an application with notice to all the parties or upon a consent being filed between the outgoing Advocate and the proposed incoming Advocate.

27. In the matter herein, the firm of M/S Kanyi J. & Co. Advocateshas filed an application to come on record on behalf of the 1st - 3rd Defendants/ Applicants and notice issued to all parties. However, there has been no objection to the said application.

28. I therefore find no reason to deny the firm of M/S Kanyi J. & Co. Advocatesto come on record on behalf of the 1st - 3rd Defendants/Applicants as they have a right to be represented by an Advocate of their choice.

ii. Whether the suit herein abated as at the 26th March, 2016

29. The Defendants/Applicants have claimed that the suit as determined on the 22nd January, 2020 abated on the 26th March, 2016 as against their father, Thomas Wambura who had been sued as the 1st Defendant and died on the 27th March, 2015.

30. According to the Defendants/Applicants, the Plaintiff/Respondent herein did not seek leave to continue with the suit after it abated as against them in accordance with Order 24 Rule 4(1)of theCivil Procedure Rules. Further, the Defendants/Applicants have stated that the suit herein abated as it was not stayed pending the appointment of legal representatives. It has been stated that the 1st and 3rd Defendants/Applicants were appointed legal representatives of Thomas Wambura (deceased) on the 3rd May, 2017 and thus the suit had abated as at 26th March, 2016.

31. It is further the Defendants’/Applicants’ contention that the Plaintiff/ Respondent should not be allowed to mislead the court that the 1st - 3rd Defendants were granted leave to file a Defence but they did not. That indeed a Defence was filed on the 9th May, 2019 and therein at paragraph 4, they raised an objection that suit had abated since the cause of action as against Thomas Wambura (deceased) was in personam and did not survive his death.

32. It is not in contention that the original Defendant, Thomas Wambura died on the 27th March, 2015 when the suit was still ongoing. The law on abatement is found under Order 24of theCivil Procedure Rules. That is indicative that there are causes of actions that survive or continue even after death of a Plaintiff or Defendant.

33. The said Order 24 Rule 4 provides for the procedure that parties ought to follow when one or a sole Defendant dies. The provision states as follows: -

Procedure in case of death of one of several defendants or of sole defendant [Order 24, rule 4. ]

(1)Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased Defendant.

(3) Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant.

34. The above Order provides that one can only be substituted by a legal representative if the cause of action survives him or her and that the said application for substitution should be made within one year.

35. I have considered the 1st - 3rd Defendants’/Applicants’ contention that the suit had abated as at 26th March, 2016. A look at the court’s proceedings, it is evidently seen that the Plaintiff/Respondent was not aware of the death of the original 1st Defendant, Thomas Wambura until sometime in 2016. On the 4th of August, 2016, as per the court’s proceedings, the Plaintiff/ Respondent who was acting in person protested to the 1st - 3rd Defendants/ Applicants decision not to inform and the court at an opportune time of the death of the original 1st Defendant, Thomas Wambura. Further, a reading of Order 24 shows that the same does not require that a suit be stayed pending the substitution.

36. It is unreasonable for the 1st -3rd Defendant/Applicant to require the Plaintiff/Respondent to have known that the original 1st Defendant, Thomas Wamburadied without them informing him and the court. Further, the fact that the suit abated as at 26th March, 2016was not in contention when the suit was heard.

37. As for whether the suit needed to be stayed before the 1st - 3rd Defendants/ Applicants became the legal representative of the deceased, I find that after the court became aware that the original 1st Defendant, Thomas Wambura had died, the court stood over the matter on several dates between 4th August, 2016 and 3rd May, 2017 as it awaited for an update on the confirmation of the Grant.

38. As regards leave to proceed with the suit after it had abated, I find it is strange that the 1st - 3rd Defendants/Applicants waited for the application dated 16th October, 2018 and filed on 24th October, 2018 for substitution and the suit therein to be heard. They did not raise an objection as to the fact that the Plaintiff/Respondent had not sought for leave to proceed with the suit. I wish to point out that litigants must always be mindful of their rights and ensure that they raise them at the opportune time since equity only aids the vigilant and not the indolent.

39. Further, the 1st - 3rd Defendants/Applicants claim that they filed a Defence on the 9th May, 2019in which they stated that the suit had abated and the cause of action did not survive the original 1st Defendant, Thomas Wambura. I have perused the whole file and find that there is no defence filed by the 1st -3rd Defendants/Applicants on record as alleged.

40. However, the record shows that the 1st - 3rd Defendants/Applicants sought leave to respond to the Amended Plaint vide an application filed on the 2nd May, 2019 through the firm of M/S John Bwire & Co. Advocates, which leave was granted and they were directed to file the same on or before the 7th May, 2019, but directions were never complied with nor the defence filed.

41. The court record also shows that on 16th May, 2019afterM/S John Bwire & Co. Advocatesceased acting for the 1st - 3rd Defendants/Applicants and M/S Kiprop Cheruiyot & Co. Advocatescame in as the Advocates on record who never filed any document in favour of the 1st - 3rd Defendant/ Applicants. It is thus improper for the 1st - 3rd Defendants/Applicants to suggest that their ground on abatement stands whilst there is no such defence on record.

42. Further, I find that the 1st - 3rd Defendants/Applicants were duly heard so that if this court re-opens the suit herein, it will amount to sitting on Appeal on the Judgment as delivered on 22nd January, 2020 by Hon. Justice P.J. Otieno, presiding over of a court of concurrent jurisdiction.

iii. Whether this court can set aside its orders issued on 22nd January, 2020 and be pleased to re-open the 1st -3rd Defendants/Applicants case.

43. The 1st - 3rd Defendants/Applicants are seeking that this court sets aside the orders issued on 22nd January, 2020 and re-open their case as per the provisions of Order 12 Rule 7of theCivil Procedure Rules which provides that:-

Order 12 – Hearing and Consequence of Non-attendance

“(7) Where under this order Judgment has been entered or the suithad been dismissed, the Court on application, may set aside or vary the Judgment or order upon such terms as may be just.”

44. My reading ofOrder 12of theCivil Procedure Rules is that it deals with non-attendance of parties in a matter. My understanding of Order 12 Rule 7of theCivil Procedure Rules is that one can only approach the court to remedy a situation where a Judgment has been entered or a matter dismissed due to the non-attendance of a party.

45. In the instant case, the 1st - 3rd Defendants/Applicants had representation of M/S Kiprop Cheruiyot & Co. Advocateswho were present during the hearing of the suit. I have looked at the proceedings of the case herein and find that on the 10th October, 2019 when the suit was heard, both appointed Advocates for the Plaintiff and Defendants were present in court and the Defendants’ Advocates clearly stated that they did not intend to file any documents in the case.

46. I have also gone through the Judgment of Hon. Justice P.J. Otieno and find that the same was delivered to the parties after they were heard and therefore premising the application herein on the provisions of Order 12 Rule 7 of theCivil Procedure Rules, is a misguided venture.

47. From the upshot of the above, I find that the 1st - 3rd Defendants/ Applicants are intent on misleading this Court to re-open their case. If the 1st - 3rd Defendants/Applicants are dissatisfied with the Judgment delivered on the 22nd January, 2020, there are proper procedures and or channels set under the law to challenge such a Judgment.

48. In view of the above findings, the application dated 11th December, 2020 lacks merit and is hereby dismissed.

49. Costs to the Plaintiff/Respondent.

It is hereby so ordered.

DATED AND SIGNED AT MOMBASA THIS 25TH DAY OF AUGUST , 2021.

D. O. CHEPKWONY

JUDGE

DELIVERED VIRTUALLY AT MOMBASA THIS 2ND DAY OF SEPTEMBER , 2021.

J. N. ONYIEGO

JUDGE